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[2019] ZAGPPHC 40
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Ndlovu v S (456/2017) [2019] ZAGPPHC 40 (30 January 2019)
REPUBUC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION PRETORIA
(1)
REPORTABLE
(2)
OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO:456/2017
30/1/2019
In
the matter between:
LINDA
NDLOVU
Appellant
and
THE
STATE
Respondent
JUDGMENT
COLLIS
J (SWANEPOEL AJ concurring)
[1] This is an
appeal against sentence with leave of the regional magistrate, Benoni
("the court a quo''
).
[2] The
appellant, a 31 year old male at the time of the incident, was
charged with Robbery
with aggravating circumstances read with the
provisions of section 51(2) of the Criminal Law Amendment Act 105 of
i997 {count 1)
and assault with the intent to do grievous bodily harm
(count 2). It is alleged that on 13 July 2015 and .at Etwatwa, the
appellant
unlawfully and intentionally acting i11 common purpose with
an unknown person, with force deprived Portia Nkambulo of her handbag
and its contents by making use of a firearm. In around the same
vicinity the appellant also unlawfully and intentionally assaulted
Vusi Mnguni by hitting him with a ·firearm butt.
[3]
The appellant legally represented at the time. pleaded not guilty to
the charges and
elected not to disclose the basis of his defence. On
8 June 2016 he was subsequently convicted on both counts. He was
sentenced
to a cumulative sentence of 18 years imprisonment as
follows:
3.1
Count 1: Eighteen
(18) years imprisonment.
3.2
Count 2: Two (2)
years’ imprisonment.
The sentences were ordered to run concurrently in terms
of section 280 (2) of the Criminal Procedure Act. Act 51 of 1977.
[4]
On 23 January 2016, the
court a quo
granted the appellant
leave to appeal his sentence.
[5]
Briefly, the evidence presented before the
court a quo
can be
summarized as follows: The complainant, Ms Portia Nkambule, testified
that on the 13
th
July 2015 at around 06h30 she was walking
on her way to work when she met up with two unknown men. They first
greeted her as she
was passing them. She responded and immediately
one of them came standing in front of her an d blocked her way. This
gentleman
holding a firearm then demanded her handbag and also
ordered her to take off her rings. He then instructed her to leave
and she
proceeded to run away. After running for a while she then
looked back and could no longer see any of her assailants. She then,
decided to tum back in the direction of her house in order to report
to her family what had happened to her. Upon doing so, her
family
then decided to set off using their vehicle to look for her
assailant. As luck would have it, along the way she then spotted
her
assailants going into a passage. They called in the assistance of a
passer-by, Mr. Vusi Mnguni and reported to him that she
had been
robbed. He then gave chase after her assailants and later returned
having caught the appellant with the assistance of
members of the
public. Upon Mr. Mnguni returning he was bleeding above his right eye
and reported to them that he had been struck
by the appellant with
the butt of a firearm, The appellant when apprehended. was then
searched and the cellphone of the complainant
was recovered from him.
The police were also called and the appellant then took them to a
shack where her rings were retrieved
together with other stolen
items.
[6] Mr. Vusi
Mnguni corroborated the evidence of the complainant that he
had
chased after the appellant and when he caught up with him, he was
assaulted by the appellant above his right eye using a firearm,
before he was able to disarm him. As he had sustained an injury and
was bleeding, he was unable to testify as to what items were
retrieved from the appellant.
[7]
The appellant when he testified, denied that on the day in question
he
had either robbed or assaulted the complainant It was his evidence
that on the day, he was walking in the street from Barcelona
when he
came across July Khoza, a person staying In the same street as him.
As they were walking along they were then approached
by a vehicle,
which nearly ran them over. July then started to run away and a
gentleman alighted from the vehicle and gave chase
after him. There
was a commotion, but he did not run away. He was then falsely accused
by the complainant that he and July had
robbed her. He denied this
and when the police arrived, he also denied it to them that he had
earlier robbed the complainant. In
his possession was found his own
two cellular phones and R 350 which he was carrying. He later
accompanied the police to point
out where July was staying but was
never shown by the police what was recovered from the room of July.
[8] Albeit,
that sentencing is inherently within the discretion of the sentencing
court,
the powers of an appeal court to interfere with the sentencing
court's discretion in imposing a sentence are limited, unless the
sentencing court's discretion was exercised improperly. The essential
inquiry in an appeal against sentence is not whether the
sentence was
right or wrong, but whether the sentencing court exercised its
discretion properly and judicially. If the discretion
was exercised
improperly, the appeal court will interfere with the sentenced
imposed.
[1]
[9] It is
further trite that where the sentence is deemed to be "startlingly
inappropriate"
or induces a ·sense of shock, with there
being a striking disparity between it and the sentence the appeal
court would have
imposed, the Appeal Court is entitled to “interfere
with such sentence because such sentence shows that the court
imposing
the sentence failed to properly and reasonably exercise the
discretion bestowed upon it.”
[2]
[10]
The appellant assails the sentence on the assertion that the
effective of 18 years imprisonment
imposed in respect of count 1 is
more than the prescribed minimum sentence for a first offender
convicted with robbery with aggravating
circumstances, and therefore
shockingly harsh and inappropriate. Furthermore. that the
court
quo
failed to make a finding that there were no substantial and
compelling circumstances present which would result in the imposition
of the prescribe minimum sentence.
[11]
In order to determine this appeal, it is important to have regard to
the provisions of section
51(2) of the General law Amendment Act 105
of 1997. It reads as follows:
S 51(2): Notwithstanding any ether !aw but subject to
subsections (3) and (6), a regional court or a High Court shall
sentence a
person who has been convicted of an offence referred to
in-
(a)
Part II of Schedule .2, in the case of -
(i) a first offender,
to imprisonment for a period not fess than 15 years;
(ii) a second offender' of
any such offence, to Imprisonment for a period not less than
20
years; and
………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
Provided that the maximum term of imprisonment that a
regional court may impose in terms of this subsection shall not
exceed the
minimum term of imprisonment that it must impose in terms
of this subsection by more than five years."
[12] Section 3 (a) further
provides as follows:
“
It a court referred to in subsection (1) or (2)
is satisfied that substantial and compelling circumstances exist
which justify the
imposition of a lesser sentence than the sentence
prescribed in those subsections, it shall enter those circumstances
on the record
of proceedings and must thereupon impose such lesser
sentence: Provided that if a regional court imposes such a lesser
sentence
in respect of an offence referred to in Part I of Schedule
2, it shall have jurisdiction to impose a term of imprisonment for a
period not exceeding 30 years.
[13] Before the
court
a
quo,
the following factors were placed before the court in
mitigation of sentence. The appellant was 23 years old, unmarried and
the
father of one minor child with whom he was residing with. At the
time of his arrest he was self-employed. During mitigation of
sentence the appellant testified that during 2005 he was convicted of
robbery in respect of which he received an eight years imprisonment
sentence and during 2007 he was convicted of dealing in a dependency
producing drug, in respect of which he received 6 years direct
imprisonment.
[14]
The
courts quo,
when imposing sentence took into account the
previous convictions of the accused, more so his previous conviction
of robbery, which
the court considered to be similar to the one he
was to be sentenced on by the court.
[3]
It also took into account. the appellant's other personal
circumstances, the seriousness of the offence and the interest of
society.
[15] When the
court
a
quo
sentenced the appellant in respect of count 1, the record is
silent as to whether the sentence of 18 years so imposed, was in
terms
of section 51(2) (a) (i) which carried a mandatory minimum
sentence of 15 years which could be increased by no mora than 5
years,
or whether the sentence of 18 years imposed was in terms of
section 51(2)(a)(ii), which carried the mandatory minimum sentence of
20 years, unless the court finds substantial and compelling
circumstances present calling for a deviation from the minimum
.sentence.
In either instance the
court a quo
should have
recorded reasons for either- increasing the minimum sentence or
deviating from imposing 5qme.ln the present instance
the court failed
to do so.
[16] I
n casu,
it is
unquestionable that
the
appellant stood before the
court a
quo
as a first offender for robbery with aggravating
circumstances which carried a mandatory minimum sentence of 15 years.
[17]
The failure however by the
court a quo
to clearly and
expressly record the reasons for an increase to the mandatory minimum
sentence of 15 years in terms of section 51(2)
(a) (i) constitutes a
misdirection which calls for an interference with the sentencing
court's discretion.
[18] Having said that,
robbery with aggravating circumstances and in this instance where a
firearm
was used to induce fear to the victim is a serious offence.
Apart from the aforesaid, this offence was committed in the
neighbourhood
of the complainant early one morning as she was going
out to earn a decent living, seemingly perpetrated by members of her
own
community. This is in my mind an aggravating circumstance.
[19] Our courts further carries
the responsibility to send a clear message to our communities
that
crime will not be tolerated. This can only be shown by the sentences
meted out by om courts. However,
in casu
having regard to the
facts and the absencec-1f clearly and expressly recorded reasons for
deviation, a deviation from the mandatory
minimum sentence was not
warranted.
[20] Accordingly, I conclude that
the appeal on sentence must succeed.
[21]
In the result the following order is made:
21.1 The appeal
against sentence is upheld.
21.2 The sentences
imposed by the
court a quo
are set aside and replaced with the
following;
21.2.1 In respect of count
1, Robbery with aggravating circumstances read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
the
appellant is sentenced to a period of 15 years imprisonment.
21.2.2 In respect of count
2, Assault with the intent to do grievous bodily harm the appellant
is
sentenced to 2 years imprisonment.
21.2.3 The sentenced
imposed on count 2 is to be served concurrently with the sentenced
imposed on
count 1.
2.1.2.4 The appellant is also d
dared unfit to possess a firearm in terms of
section 103
of the
Firearms Control Act 60 of 2000
.
21.2.5 The sentences are
antedated to 8 June 2016 in terms of Section 282 of the Criminal
Procedure
Act, Act 51 of 1977.
C.J COLLIS
JUDGE OF THE HIGH COURT
I agree
J.J.C.SWANEPOEL
ACTING JUDGE OF THE HIGH COURT
IT IS SO
ORDERED.
Appearances:
For the Appellant:
Ms. M.B. Moloi
Instructed by:
Legal Aid South Africa
For the Respondent:
Adv. C. Pruis
Instructed by:
Director of Public
Prosecutions Pretoria
Date
of Hearing:
03 December 2018
Date
of .Judgement:
30 January 2019
[1]
S v Malgas 2001(1) SACR 469 (SCA)
[2]
S v Wright
2000 (1) SACR 322
(SCA) at 324h & S v Michael and
Another 2010 (1) SACR at 1344h-135b
[3]
Transcribed Record pg 76 Lines 1-4